RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2011-02343
COUNSEL: NONE
HEARING DESIRED: YES
_________________________________________________________________
APPLICANT REQUESTS THAT:
His condition of Obstructive Sleep Apnea (OSA) be changed to
reflect In the Line of Duty (ILOD) rather than Existed Prior
to Service (EPTS) Line of Duty Not Applicable.
_________________________________________________________________
APPLICANT CONTENDS THAT:
There is a definite correlation between pain and OSA. In 2007,
he injured his lower back and left leg, which caused severe pain
in his back and the beginning of his difficulties sleeping. He
was diagnosed with bulging disks at L3, L4, and L5. He also
suffered from a complete tear of his right bicep tendon in 2008.
In support of his appeal, the applicant provides copies of his
Informal LOD, a memorandum concerning the Reinvestigation of
Final Determination, electronic communications, sleep study
medical documentation, and a response to a congressional inquiry.
The applicant's complete submission, with attachments, is at
Exhibit A.
_________________________________________________________________
STATEMENT OF FACTS:
The applicant is currently serving in the United States Air Force
Reserve (AFRES) in the grade of senior master sergeant (E-8).
While serving on active duty orders from 29 November 2009 to
6 April 2010, he was diagnosed with OSA. An Informal LOD
determination, dated 26 April 2010, found the applicants
condition of OSA as EPTS-LOD Not Applicable. The applicant
exercised his right to a reinvestigation in accordance with Air
Force Instruction 36-2910, Chapter 4, which was denied both by
the Appointing Authority and the Approving Authority on
24 February 2011.
_________________________________________________________________
AIR FORCE EVALUATION:
AFRC/SGP recommends denial. SGP states an LOD determination is
based on the onset of the disease and not the manifestation of
symptoms. Additionally, the EPTS finding is based on the period
of service during which the symptoms manifested themselves, not
the members entry into the service. This negates the
applicants assertion it should be ILOD because he didnt have
the condition upon entering the service. He also believes Title
10, United States Code (USC), Section 1207A; the 8-year rule
should apply to his case. However, this statute is for
disability consideration and conditions that render service
members unfit for military duty and can only be applied by the
Physical Evaluation Board (PEB). A disability case submitted to
the PEB would allow the appropriate authority to apply the 8-
year rule if he was found unfit for military service. However,
the applicant has already undergone Medical Evaluation Board
(MEB) processing and was returned to duty on 27 January 2011.
SGP indicates the applicant also feels the pain from his service-
connected orthopedic condition is the cause of OSA. While the
pain may be the cause of another sleep disorder, it is medically
unrelated to OSA. As noted in the two previous reviews of his
LODs, intrinsic contributions to OSA, such as obesity and
physiologic airway obstruction are, in the applicants case,
likely a far more significant contributing factor and neither of
these was impacted or worsened by military service. His LOD and
re-investigation were thoroughly reviewed, processed, and ruled
upon by the regulation designated authorities. EPTS-LOD Not
Applicable was the most prudent finding in accordance with all
laws, regulations, and policies.
The complete SGP evaluation is at Exhibit C.
_________________________________________________________________
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
A copy of the Air Force evaluation was forwarded to the applicant
on 4 November 2011 for review and comment within 30 days (Exhibit
D). As of this date, this office has received no response.
_________________________________________________________________
THE BOARD CONCLUDES THAT:
1. The applicant has exhausted all remedies provided by existing
law or regulations.
2. The application was timely filed.
3. Insufficient relevant evidence has been presented to
demonstrate the existence of an error or an injustice. We took
notice of the applicant's complete submission in judging the
merits of the case; however, we agree with the opinion and
recommendation of the Air Force office of primary responsibility
and adopt its rationale as the basis for our conclusion the
applicant has not been the victim of an error or injustice.
Therefore, in the absence of evidence to the contrary, we find no
basis to recommend granting the relief sought in this
application.
4. The applicant's case is adequately documented and it has not
been shown that a personal appearance with or without counsel
will materially add to our understanding of the issues involved.
Therefore, the request for a hearing is not favorably considered.
_________________________________________________________________
THE BOARD DETERMINES THAT:
The applicant be notified that the evidence presented did not
demonstrate the existence of material error or injustice; that
the application was denied without a personal appearance; and
that the application will only be reconsidered upon the
submission of newly discovered relevant evidence not considered
with this application.
_________________________________________________________________
The following members of the Board considered AFBCMR Docket
Number BC-2011-02343 in Executive Session on 6 March 2012, under
the provisions of AFI 36-2603:
, Panel Chair
, Member
, Member
The following documentary evidence was considered for AFBCMR
Docket Number BC-2011-02343:
Exhibit A. DD Form 149, dated 23 Jun 11, w/atchs.
Exhibit B. Applicant's Master Personnel Records.
Exhibit C. Letter, AFRC/SGP, not dated.
Exhibit D. Letter, SAF/MRBR, dated 4 Nov 11.
Panel Chair
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